Breaking Workplace Developments On The COVID-19 Pandemic
Over the past several days, the reaction to the novel coronavirus, COVID-19, has changed dramatically and at an exponential rate as we learn more information about the virus. We have seen a National State of Emergency declared by President Trump on Friday, March 13, 2020, and a call from health experts to engage in social distancing to slow the spread of the virus. Schools across the country have been cancelled for two weeks or more and places of social gathering, sports and entertainment venues, such as Disney World, have closed. Because this is an unprecedented pandemic situation, we cannot anticipate all the workplace scenarios you may experience, but this summary should give you some initial legal guidance and additional resources to help answer your potential questions. As we confront new challenges arising from the impact of coronavirus, we stand ready to support you and provide counsel to address the specific labor and employment law issues you may encounter.
What is the Families First Coronavirus Response Act?
On Friday, March 13, 2020, the United States House of Representatives passed the Families First Coronavirus Response Act (the “Bill”), which could potentially provide free screening, paid leave and enhanced unemployment insurance benefits for people affected by COVID-19. The text of the Bill was released on Saturday, March 14, 2020, and must still be approved by the Senate and signed by President Trump. While certain provisions may change, the Bill proposes to amend the Family and Medical Leave Act (“FMLA”) on an emergency basis to provide employees of employers with fewer than 500 employees and government employers, who have been on the job for at least 30 days (regardless of whether the employees are within a 75 mile radius), with the right to take up to 12 weeks of job-protected leave under the FMLA to be used for any of the following reasons:
- To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
- To care for an at-risk family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus; and/or
- To care for a child of an employee if the child’s school or place of care has been closed, or the child care provider is unavailable, due to coronavirus.
The Bill also requires that employers with fewer than 500 employees and government employers provide employees with two weeks (80 hours) of paid sick leave, paid at the employee’s regular rate, to quarantine or seek a diagnosis or preventive care for coronavirus; or paid at two-thirds the employee’s regular rate to care for a family member for such purposes or to care for a child whose school has closed, or whose child care provider is unavailable, due to the coronavirus. After the two weeks of paid leave, qualified employees are entitled to receive from their employers two-thirds of the employee’s usual pay for the remainder of their 12-week, job-protected leave. Additionally, an employer may not require an employee to use other employer paid leave before the employee uses the leave provided by the Bill.
We will update you on any changes to the final legislation that may occur and guidelines for implementing these emergency procedures.
What other laws impact employers when making decisions about COVID-19?
Employers must also consider the implications of other federal, state and local laws, including the Occupational Safety and Health Act (“OSHA”), the Americans with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”), and the Florida Civil Rights Act (“FCRA”), among others, when addressing coronavirus in the workplace. In addition, employers should regularly check the CDC’s Interim Guidance for Business and Employers for recommended business practices and procedures.
Does an employer have to allow employees to work from home?
if an employee has a disability, such as an auto-immune disease that makes the employee at higher risk of complications from COVID-19, or a mental health issue, such as obsessive compulsive disorder that is exacerbated by COVID-19, then the ADA, as well as state and local laws, may require that the employee be allowed to work from home as a reasonable accommodation even if the employee is not subject to a quarantine recommendation. If working from home presents an undue hardship or is otherwise not possible, then the employer should engage in the interactive process to determine whether another reasonable accommodation exists.
In addition to considering a reasonable accommodation, should an employer institute a general work from home policy?
This will depend largely on the employer’s type of business and workforce. In making this determination, the employer should assess its system infrastructure, privacy protocols, and payroll practices. A work from home policy, however, may help control infection amongst employees, customers and vendors and may be soon be mandated by governmental restrictions.
If an employer does allow employees to work from home, the policy should be applied in an equal manner to all employees. For example, if an employer allows older workers to work from home, but requires younger workers to come into the office, the FCRA may be violated as it prohibits age discrimination of not only workers 40 and over, but also of younger workers. Similarly, allowing only women to work from home due to childcare needs, may be discriminatory against men.
In addition, if an employer decides to make a reasonable accommodation for an employee or allow employees to work from home, we recommend providing a written statement to the employees that not only sets forth the work/performance/productivity expectations but also states that 1) the ability to work from home is based solely upon the extraordinary events related to COVID-19 pandemic, 2) the work from home arrangement is temporary, 3) the work from home arrangement will be regularly evaluated based upon guidance from the CDC and other government agencies, and 4) attendance at your business’ location is an essential function of the job which is being temporarily waived due to the COVID-19 pandemic and national state of emergency.
Employers may also wish to review the EEOC’s Guidance on Work at Home/Telework as a Reasonable Accommodation.
Can an employer take an employee’s temperature or send them home if they appear sick?
An employer cannot make disability related inquiries or require a medical examination if the inquiry is not 1) job-related or 2) consistent with business necessity. Taking an employee’s temperature is a medical examination under the ADA and therefore should not be performed by an employer unless the CDC issues guidance to the contrary as these rules evolve.
An employer also may not poll employees about health conditions to anticipate potential absenteeism. An employer may ask about specific cold or flu symptoms, however, such as whether the employee has a fever or chills. Furthermore, any employee that exhibits COVID-19 like symptoms may be sent home. Please note that any health information that is obtained from an employee, including testing positive for COVID-19, must be kept confidential and separate from the employee’s personnel file.
The EEOC has published another useful resource on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.
Do employers have to allow employees to wear face masks if they request to wear one?
Generally, an employer does not have to allow an employee to wear a respirator or face mask when OSHA and CDC guidelines, such as those for healthcare workers, do not require it. In addition, health officials have indicated that that wearing masks, when not required, may create a false sense of security among the general public and are not the best defense against COVID-19. However, if wearing a mask or respirator would be a reasonable accommodation for an employee’s disability, then the employer should allow it.
What are an employer’s obligations to pay an employee if the employee is out due to COVID-19?
If the Bill passes, then employers will be required to pay employees in accordance with the provisions of the Bill as described above. Until the Bill is passed, employers should follow their usual paid time off/sick leave policies. Employers, however, are not prohibited from offering more generous paid time off during the pandemic in order to encourage sick employees or employees who have been exposed to COVID-19 to stay home. If an employer decides to offer greater paid time off due to COVID-19, the policy should be communicated in writing to the employees, including that the change is temporary due to the circumstances.
What are an employer’s obligations under the FLSA if employees work from home?
Under the FLSA, all hourly employees must be paid for all hours worked regardless of whether the work is performed at home or in the office. Breaks of thirty minutes or more can remain uncompensated as long as the employee is completely relieved of duty. Make sure to remind employees that all work time must be reported and there is no “working off the clock”. Salaried exempt employees must be paid their full salaries in any week in which they perform work regardless of the number of hours worked or the number of days worked. The DOL has created resources for employers on these wage and hour issues COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers and the WHD Opinion Letter FLSA 2005-41 concerning payment of salaried exempt employees.
Employers may also have a legal obligation to continue to pay employees under the terms of an employment contract or a collective bargaining agreement.
Do employers have any special obligations under OSHA?
During a pandemic, the scope of an employer’s obligations under the OSHA general duty clause depends on the particular circumstances. For example, a medical provider may have higher obligations to protect its employees than a typical office environment. However, an employer’s failure to take appropriate action may form the basis of a general duty clause violation where either 1) the risk of transmission is likely or 2) when the pandemic virus has been detected in the workplace.
Regardless of industry or work environment, OSHA and the CDC urges all employers to protect their workers from occupation exposure during a pandemic outbreak by encouraging employees to 1) stay home if they are sick, 2) regularly wash their hands and take proper hygienic measures, 3) avoid shaking hands, and 4) avoid close contact with coworkers, among other steps recommended by the CDC.
In light of these OSHA requirements, we recommend that employers develop and implement a pandemic preparedness plan. This plan may include incorporating information from federal, state and local health sources, preparing to work with a reduced schedule, and minimizing exposure to employees or the public.
In addition, employers may find helpful the DOL OSHA Guidance for Preparing Workplaces for COVID-19 . This guidance provides specific workplace recommendations for lower exposure risk, medium exposure risk, high exposure risk, and very high exposure risk occupations. Healthcare employers may also wish to review the DOL’s Temporary Enforcement Guidance for Respirator Fit-Testing in Healthcare During COVID-19 Outbreak.
What should an employer do if an employee is diagnosed with COVID-19?
An employer should immediately remove the employee from the worksite or office and take the necessary steps to notify coworkers who may have been in contact with the employee, while not specifically identifying the individual who tested positive.
In addition, OSHA has recently determined that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. Employers are only responsible for recording cases of COVID-19, however, if all of the following conditions are met:
- The case is a confirmed case of COVID-19;
- The case is work-related; and
- The case involves one or more of the general recording criteria set forth under OSHA (e.g. medical treatment beyond first-aid, days away from work).
Can an employer require an employee to present a fitness-for-duty to return to work after being diagnosed with COVID-19?
Employers should be mindful that two negative tests are currently necessary to be considered clear of COVID-19. Although it is not illegal to require such medical clearance, the CDC currently recommends that employers not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and unable to provide such documentation in a timely way. Rather, the CDC recommends that employees suffering from acute respiratory issues not come to work until they are free of fever (100.4° F or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).